December 6, 2013

The Tragic Costs of Same-Sex Divorce

Today I chatted with two women while getting another pair of distance glasses for driving. It all happened because my partner of 44 years didn’t realize that they were prescription glasses—but that’s another story. We talked about same-sex marriage, and I said that we had gotten married in early October. One of them asked if we wed in Oregon, and I explained that it had to be in Washington because it wasn’t legal. The other woman was more savvy: she said that she had already signed the petition for the ballot initiative. Both, however, were very supportive of marriage equality.

What the discussion made me think about is how I tend to ask any wedded same-sex couple where they were married. I never ask straight people this–at least until after we’ve covered other details. At a recent fundraiser for a marriage equality ballot initiative, four lesbian couples were married and a fifth planned their wedding on Thanksgiving. The longest legally-married couple went to Canada ten years ago, another couple married in Massachusetts, and the other two, who married after the U.S. Supreme Court decision legalized federal marriage equality for some couples went to Washington. The Thanksgiving couple went to California. All of us are ecstatic about our nuptials.

What about those married same-sex couples who didn’t remain happy? Especially when these couples live in a state that refuses to recognize marriage equality? Lauren Beth Czekala-Chatham and Dana Ann Melancon are one of these couples. Married in California five years ago, the federal government recognizes their legal relationship, but their state of residence, Mississippi, does not. The problem is that they want a divorce.

In 1997, Mississippi lawmakers amended the law to say that the state would not recognize same-sex marriages from other jurisdictions, and in 2004, 86 percent of residents voted to ban same-sex marriage in the state’s constitution. Although the couple may be the first to try for a divorce in Mississippi, couples in Texas and Kentucky have hit the same dead end because of state law.

An easy solution would be to fly back to California to get a divorce. But many states and countries, including Canada, have residency requirements for divorce. Same-sex couples can get married in these states on the same day that they arrive, but they have to live there six months or longer to get divorced. Canada’s residency requirement is two years. Fortunately, California has removed its residency requirement for divorce.

The Texas Supreme Court is currently considering the cases of the couples who want their out-of-state marriages legally dissolved in a challenge on the constitutional ban against marriage equality approved by 1.7 million voters in 2005. Attorney General Greg Abbott, leading Republican candidate for governor, stopped a court from finalizing a divorce to a Dallas gay couple and appealed an Austin judge’s decision to grant a lesbian divorce.

Wyoming, which bans marriage equality, set a precedent when the state Supreme Court ruled in favor of same-sex divorces. Over a year ago before Maryland legalized marriage equality, the state Supreme Court ruled that a lesbian couple could get divorced despite the state’s ban on same-sex marriage. AG Abbott did admit that the U.S. Supreme Court decision allowing federal same-sex marriages could overturn Texas’ constitutional provision.

“If the attorney general is so against gay marriage, why is he trying to keep these guys married?” said Peter Schulte, a lawyer in one of the cases. Abbott’s spokesman Jerry Strickland said that same-sex marriages should be “voided,” a legal method for ending what he calls an “invalid” relationship.

Some couples have gone to extremes to get their divorces. In Oklahoma, a lesbian couple used only initials in divorce proceedings; the divorce was granted and then later declared void. In trying to get a divorce in Rhode Island, which now recognizes same-sex marriage, a women considered having sexual reassignment surgery in California so that she could have the sex on her birth certificate changed to male, making a divorce legal outside Massachusetts where they married.

In Missouri, attorney Christine Kiefer wants to divorce her lesbian partner after they married in Iowa. To do so, one of them would have to establish residency in a state that recognizes their marriage: Iowa takes a year, but Illinois only requires 90 days. At this time the two of them are seeking an annulment but don’t expect much success in their endeavor. Kiefer’s main hope is that a liberal judge will rule that their marriage never existed because Missouri doesn’t recognize marriage equality. Iowa, however, might disagree.

Ron Paul (not the presidential candidate) and his partner have the same problem. After an 18-year relationship, they went from Virginia to Massachusetts four years ago to marry. Now they want a divorce, but Virginia won’t give them one. Paul can’t take the time off from his business to move to Massachusetts and wants to marry someone else.

Kentucky residents Alysha Romero and Rebecca Sue Romero also married in Massachusetts. They filed for divorce on October 25, 2013, but everyone seems to agree that the court has to dismiss the petition because Kentucky’s anti-marriage equality amendment bans not only same-sex marriage but also the recognition of such marriages performed elsewhere. Twenty states have that ban on recognition of same-sex marriages performed in any other state, and Georgia goes farther, explicitly banning same-sex divorce.

The Romero lawyer’s strategy is to appeal the dismissal and request that the state Supreme Court throw out the marriage amendment on the grounds that it violates equal protection of law guaranteed under the U.S. Constitution.

Children make the entire divorce issue even messier. New York residents Mercedes Counihan and Molly Bishop married in Connecticut in 2009. Bishop was the biological mother of a son in 2010 before the state’s marriage equality was approved in 2011; both women signed documents for the in vitro process. Following their divorce, Counihan had no visitation rights for their son because the judge ruled there was no indication that Counihan had any parental rights. He ignored the facts that Counihan was listed as the second mother on the birth certificate and the child’s name was hyphenated with both mother’s name. The decision was reversed, Counihan has visitation rights, and the case is still wandering the courts.

The inconsistency of judicial decisions in the same state can be very frustrating for same-sex couples. Ohio has a constitutional amendment against marriage equality, but a Columbus judge granted two men a divorce last year. Yet in the same court, another judge refused a divorce to a lesbian couple, using the state’s constitutional ban on marriage equality as the justification.

Same-sex couples usually pay twice as much for divorces as heterosexual counterparts. The cost is triple if children are involved. Lawyers familiar with same-sex divorce will charge more because of additional documents, and same-sex couples are more likely to have divorce applications rejected, requiring expensive appeals. Divorced gay and lesbian couples may have had to pay federal gift tax in the past because the federal government didn’t recognize these marriages until last summer. Courts also delay the divorce because they don’t know how to handle the situation.

Because same-sex marriage in the United States has a history of only one decade, there is little information about the divorce rate for gays and lesbians. Michael Rosenfeld, a sociology professor at Stanford University, concluded that the breakup rate between same-sex and opposite-sex couples is about the same after assessing 3,000 couples since 2009. Another study from the Williams Institute, a Los Angeles think tank that studies legal issues related to sexual orientation, indicates that same-sex couples divorce at about half the rate of opposite-sex couples. No matter which is right, the problems for all divorcing couples are the same: division of property, spousal benefits, child custody, health coverage for a spouse, the ability to get remarried without bigamy charges.

A huge difference between same-sex and opposite-sex couples, however, is the fact that many gays and lesbians have been coupled to the person who they marry for decades before the ceremony because the law prevented them from marrying. During the time that they live as married couples, they merge assets and raise children together. This was the experience of Rabbi Margaret Wenig when the court ignored the 17 years she was with her partner before the legal marriage.

In addition to Oregon, four other states—Colorado, Michigan, Nevada, and Ohio—have mobilized campaigns to legalize marriage equality. Texas has no such plans, but Dallas City Council members are taking up a resolution supporting same-sex marriage.

Ultimately, however, same-sex divorce, not marriage, may overturn the ban on same-sex marriage throughout the United States. Meanwhile, states that legalize marriage equality can make a great deal of money by waiving the residency requirement for same-sex couples married in any other state.